' JAVED IQBAL, J.---This is a review of a judgment of this Court delivered on 26th May, 1998 whereby Criminal Appeal bearing No,77 of 1994 was dismissed.
2. Mr. Ijaz Hussain Batalvi, learned Senior Advocate Supreme Court appeared in support of this petition and urged that in the judgment impugned peculiar facts, circumstances of the case and the relevant rulings of law have been ignored and the conviction and sentence of death has been maintained which resulted in serious miscarriage of justice. It is contended that nine accused were placed in column No,2 which is demonstrative of the fact that prosecution story was not true and nine accused out of fifteen accused were acquitted which speaks volume about the credibility of the prosecution witnesses. It is argued that the ocular evidence is not only dubious and defective, but it is also interested and inimical which should have been discarded as no independent corroboration was available. It is urged with vehemence that the alleged occurrence took place during a pitched dark night and the question of identification by complainant standing at a distance of 92 feet is hardly believable. It is contended that medical evidence is inconsistent with ocular version as the time of alleged occurrence does not find support from it. It is also pointed out that the petitioner had no grudge whatsoever against Mst. Shahzad Bibi (deceased) and thus the alleged motive is false and incorrect on the basis whereof no conviction could have been awarded.
It is also contended that (this point was not incorporated in memo. Of revision petition)
Muhammad Aslam son of Muhammad Afzal was not present at the time of occurrence who remained confined in District Jail Gujrat w.e.f, 12-9-1990 to 1-10-1990 whereas the occurrence took place in between the intervening night of 13-9-1990 and 14-9-1990. In order to substantiate the said version a copy of Letter No,3698 dated 26-7-2000 issued by Superintendent, District Jail, Gujrat to Superintendent, District Jail, Shahpur, Letter No,7248 dated 21-7-2000 from Superintendent, District Jail, Sargodha to Superintendent, District Jail Shahpur and copy of F.I.R. Bearing No,307 of 1990 got lodged at Police Station Bhalwal, District Sargodha, were referred. (The abovementioned documents were never produced before learned trial Court, High Court or this Court. The said documents were not annexed with this review petition but sent by Muhammad Aslam (petitioner) alongwith his application addressed to the Hon'ble Chief Justice of this Court forwarded by the Superintendent, District Jail, Shahpur). The learned Advocate Supreme Court on behalf of petitioner has relied upon the following authorities:-- ' Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Arshad v. State (PLD 1995 SC 475), Ammanullah v. State (PLD 1978 Kar. 792), Aminullah v. State (PLD 1982 SC 429), Aminullah v. State (PLD 1981 SC 325), Allah Wadhayou v. State (2001 SCM R 25), Zulfiqar Ali Bhutto v. State (PLD 1979 SC 741), Safdar Ali v. The Crown (PLD 1953 FC 93), Yaqoob Khan v. State (PLD 1996 SC 97) and Muhammad Rashid v. State (1969 PCr.LJ 815)
3. Before dilating upon the contentions are agitated on behalf of petitioner we would like to examine the question being pivotal one as to whether this review petition is maintainable. We have almost thrashed out the entire case-law available on the subject which is as follows:-- ' Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335), Rajunder Narain Rao v. Bijai Govind Singh (2 M I A 181), R.N.K.R.M. Somasundaram Chetty v. N.R.M.V.L. Subramanian Chetty (AIR 1926 PC 136), Henry Hebbert v. The Rev. John Purchas (1989-71) Vol. III L R P C 664), Venkata Narasimha Appa Row v. The Court of Wards (1886) 11 A C 660), Raja Prithwi Chand Lal Choudhury Sukhraj Rai and others (AIR 1941 FC 1), Akbar Ali v. Iftikhar Ali (PLD 1956 FC 50), Ilam Din v.
Muhammad Din (Civil Petition No,3 of 1960 (unreported)), Zulfiqar Ali Bhutto v. State (PLD 1979 SC 741), Chhajju Ram v. Neki and others (AIR 1922 PC 112), Tinnevelly Mills Co. Ltd v. T.A.K. Mohideen Pichai Taranganar and others AIR 1929 Mad. 209, Girkharlal Mansukhbhai Gandhi v. Kapadvani Municipality. (AIR 1930 Born. 317, Ballrishan and another v. Mt. Bundia and others (AIR 1933 All. 274), Thakur Krishan Chand Singh v. Munshi Makund Sarup (AIR 1938 All. 308), Ranbir Prasad v.
Sheobaran Singh (AIR 1939 All. 619), Mt. Majid-un-Nisa v. Shaikh Anwarullah (AIR 1942 Oudh 210), Madansingh Ramsingh Malguzar v. Deputy Commissioner, Bilaspur and others (AIR 1944 Nag. 371), Moran Mar Basselois Catholicos and another v. Most Rev. Mar Poulose Athanalsus and others (AIR 1954 SC 526), Burma Shell Oil Storage Distributing Co. Of India Ltd: v. Labour Appellate Tribunal (AIR 1955 Cal. 92), Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 201), S.P.Awate v. C.P.
Fernandes (AIR 1959 Bom. 466), Kashiram v. Bhagwandas Lallu (AIR 1959 Madh. Pra. 75), Anwar Hussain Talukdar v. Provice of East Pakistan (PLD 1961 Dacca 155), Province of East Pakistan v.
Mohiuddin Molla (PLD 1961 Dacca 490), Abdul Ghafoor v. State (1969 SCMR 13), Chiragh Din v.
Chairman, Thal Development Authority (1970 SCM R 29), Abdul. Majid v. Chief Settlement Commissioner (1970 SCM R 34), Ata Muhammad v. State (1970 SCM R 482), Shah Muhammad v. The State (PLD 1973 SC 332), Haji Nawab Din v. Qazi Abu Saeed (1973 SCM R 143), Muhammad Mushtaq v.
The State (1973 SCM R 219), Collector of Customs v. Muhammad Yousaf (1974 SCM R 7), Muhammad Naseer v. Hakim Dost Muhammad (1975 SCM R 87), Ch. Manzoor Elahi v: Federation of Pakistan (PLD 1975 SC 66), Muhammad Zafarullah Khan v. Muhammad Khan (PLD 1975 SC 300), Syed Muhammad Zaki v. Maqsood Ali Khan (PLD 1976 SC 309), Mst. Inayat Bibi V. Umar Din (1978 SCM R 163), Zamir Ahmad Khan v. Government of Pakistan (1978 SCM R 327), Rizwan Cooperative Society Ltd. v.
Custodian of Evacuee Property (1978 SCM R 449), Ghulam Sarwar v. The State (1979 SCM R 43), Muhammad Hussain v. State (Cr. Rev. Petition No,6 of 1974), Siraj Din v. Nazar Hussain (Cr. Rev.
Petition No,8 of 1974), Muhammad Sarfraz v. State (Cr. Rev. Petition No,1 of 1975), Agha Khan v, The State (Cr. Rev. No,7 of 1966), Tariq Javaid v. State (Cr. Rev. Petition No,4-R of 1976), Kala Khan v. Misri Khan (Cr. Rev. Petition No,2-R of 1977), Feroze v. State (1975 SCM R 232), Yaqoob Khan v. State (PLD 1996 SC 97), Saeedur Rahman v. State (1980 SCM R 271), Khadim Hussain v. State (1985 SCM R 721), Lal Singh v. Crown (ILR 51 Lah. 396), Ghulam Rasul v. State (1988 SCM R 557), Master Tahilram v.
Lilaram (1970 SCM R 622), Aminullah v. State (PLD 1981 SC 325), Subrahmanyan Chettiar v.
Muttuswa mi Goundanu (AIR 1941 FC 47), Adalat v The Crown (PLD 1956 FC 171), Muhabbat Khan v.
Fateh Muhammad (PLD 1976 SC 593), "Latin For Lawyers" by Sweet and Maxwell, London Publication (1915), p. 242, Maxim No,967 Aiyer's Law Lexican, 1940 Edn., p. 1173, Reg v. Millis (House of Lords) (10 C & F 534), Reg v. Millis (8 ER 907), Paquin Limited v. Beauclerk (1906) 138 LJ 100), Kennedy v. Spratt (1972) A C 83), Halsbury's Laws of England,. (4th End., Vol. 10, p. 765), Law in the Making by C. K. Alen, (7th Edn., p.253), Noora v. State (PLD 1973 SC 469), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Bhullah v. Karim Bakhsh (1969 SCM R 18) and Muhammad Azam v. Khalid Javed Gillan (1981 SCM R 734).
4. After having gone through the case-law as mentioned hereinabove the consensus seems to be that once a conscious and deliberate decision is given by the Supreme Court, it should be re- opened and re-considered with great hesitation and subject to availability of unexceptional circumstances. The review would not be maintainable where judgment impugned is unambiguous and free from any legal infirmity. The criminal proceedings cannot be reviewed in the absence of an error, utter violation of settled norms of justice or disregard of the forms of legal process. The incorrectness of a conclusion arrived at after a conscious perusal of record and an in-depth examination of evidence cannot be made a ground for review because "to permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against the other Benches, and that surely is not the scope of review jurisdiction." (The view of Mr. Justice B. Z. Kaikaus given in case titled Muhammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335). Review cannot be granted for consideration of fresh evidence which could with due iligence have been placed before the Court at the time of original hearing.
5. On the touchstone of criterion as mentioned hereinabove we have carefully examined the contentions as agitated on behalf of the petitioner and perused the judgment impugned thoroughly which is indicative of the fact that the following points were raised at the time of arguments:--
(a) The complainant Amir was standing at a distance of 90 feet and as such he could not see the assailants.
(b) The night was also dark as it was 24th of the lunar month.
(c) Muhammad Nazir (P.W.) was in a critical position due to infliction of injuries and not in a position to speak.
(d) There was no occasion to commit the murder of Mst. Shahzad.
(e) The alleged motive was based upon the murder of Afzal and Manak which had taken place ten years ago and during the said period no untoward incident occurred.
(f) The alleged murder was committed by some unknown persons.
(g) There was serious difference between Amir (P.W) and his sons over the domestic matters.
(h) Ocular version does not find support from the medical evidence.
6. All the abovementioned contentions were dilated upon in a comprehensive manner by this Court after having gone through the entire evidence in-depth. (Attention is invited to paragraphs Nos.5 and 6 of the judgment impugned).
7. It is worthmentioning that Mr. Ijaz Hussain Batalvi, learned Senior Advocate Supreme Court has pressed time and again that Muhammad Aslam was confined in District Jail, Gujrat w.e.f, 12-9-1990 to 1-10-1990 and hence the question of conviction and sentence does not arise. A careful scrutiny of the judgment delivered by Lahore Court reflects that the following main contentions were urged:--
(a) The case against the appellant was highly doubtful and the prosecution witnesses were disbelieved with regard to five acquitted co-accused and withoqt corroboration which could not be relied upon against the appellant.
(b) Amir (P.W.) was not present at the spot as the injured was brought to the hospital by one Ahmad son of Raja.
(c) The occurrence was witnessed by the complainant from a distance of 92 feet in a dark night which was not possible.
(d) The time of occurrence was not supported by medical evidence.
8. No mention whatsoever was made that Muhammad Aslam remained in District Jail, Gujrat. Be as it may the said plea was agitated half-heartedly before the learned trial Court which was dilated upon and decided as follows:-- "37. According to the learned defence counsel, Muhammad Anwar, and Muhammad Aslam accused were present in the lock-up of Police Station Cantt. And in the judicial lock-up at Lala Musa, respectively and both of them had not been challaned as actual assailants. Similarly it was argued that according to the evidence of Javed Hanif P.W. 2, Khizar Hayat accused was sent to the jail on 12-9-1990 by the Illaqa Magistrate, Mandi Bahau-ud-Din. In such a situation, the learned defence counsel argued that their presence at the spot was not possible. While making a statement under section 342, Cr.P.C. Muhammad Aslam, Muhammad Anwar and Khizar Hayat accused had not stated in the Court that they were present in judicial lock-up and of police lock- up at the time of the occurrence. During his cross-examination Zia Ullah Khan, Inspector of Police P.W.14, had admitted that the had challaned Anwar and Aslam accused for the conspiracy of murders and not as actual assailants. He had also admitted that according to his investigations, Aslam accused was arrested by the police of Police Station Lala Musa on 11-9-1990 under the Arms Ordinance and was sent to judicial lock-up on 12-9-1990. He also admitted that Muhammad Anwar accused was arrested by Muhammad Hussain, S.-I., C.I.A. Staff of Sargodha, under the Arms Ordinance and was locked-up for a night in the lock-up of Police Station Cantt., Sargodha. The offence under the Arms Ordinance is a bailable one and there is nothing in the evidence of Zia Ullah Khan P.W.14 that Muhammad Aslam accused was in judicial lock-up on the night between 13th and 14th September, 1990 or that he was not released on bail on 12-9-1990. Similarly the date of the arrest of Muhammad Anwar accused and the date of his spending the night in the police lock- up of Police Station Cantt. Had not been mentioned by P.W.14 in the Court. As mentioned above, Muhammad Anwar and Muhammad Aslam accused had not stated, in their statements, under section 342, Cr.P.C. That they were in the lock-up of Police Station Cantt., Sargodha or judicial lock- up Lala Musa, respectively, on the night between 13th and 14th September, 1990. Both the abovementioned accused failed to produce evidence in their defence. Had they been present in the judicial lock-up and police lock-up, they could have easily summoned the record of the two lock-ups and defence witnesses to support their contentions. According to the prosecution allegations, Khizar Hayat accused and other had conspired on 5-9-1990, that Ahmad Yar and Mst.
Shahzad Bibi be murdered. According to the evidence of P.W.2 Javed Hanif, Khizar Hayat was sent to judicial lock-up on 12-9-1990. Prior to that he was on bail. Thus, there is no defence evidence to prove that on 5-9-1990, Khizar Hayat accused was in the judicial lock-up. This I would be justified in holding that Muhammad Aslam and Muhammad Anwar accused had failed to prove that at the time of the occurrence they were present in the Judicial Lock-up, Lala Musa and lock-up of Police Station Cantt., Sargodha, respectively. Similarly Khizar Hayat accused has also failed to prove that on 5-9-1990, the alleged time of conspiracy, he was in the judicial lock-up."
9. At the cost of repetition it is to be pointed out that the said plea (absence of Muhammad Aslam) was never agitated before the High Court or this Court while arguing the appeals, meaning thereby that the said plea was abandoned which does not even find mention in the grounds of the memo.
Of this revision petition.
10. We have examined the entire record which is indicative of the fact that the statement of Muhammad Aslam was got recorded under section 342, Cr.P.C. On 15-10-1990 by learned Presiding Officer, Special Court No,II, Suppression of Terrorist Activities, Sargodha Division, Sargodha. A careful scrutiny of his statement reflects that not even a single word whatsoever was uttered by Muhammad Aslam regarding his detention in District Jail, Gujrat w.e.f, 12-9-1990 to 1-10-1990. He could have conveniently taken the plea of alibi while answering questions Nos.4, 5 and 6 asked when his statement was being recorded under section 342, Cr.P.C. By explaining the circumstances due to which he remained confined in District Jail, Gujrat. It was not done meaning thereby that this plea was not available at the relevant time and appears to be an afterthought and fabricated. It is inconceivable that such plea was available but could not be pressed into service due to an inadvertent omission while he was being represented by a counsel before all the forums. It is amazing that Muhammad Aslam kept mum in this regard while answering questions Nos.7, 8 and 9 which are reproduced hereinbelow for ready reference:-- "Q.No,7.--Why this case against you and why have the P.Ws. Posed against you?
' Answer.--Due to enmity.
' Q.No,8.--Have you got anything else to say?
' Answer.--I am innocent.
' Q.No,9.--Will you produce evidence in your defence? Answer. No,"
11. Muhammad Aslam could have very conveniently brought his absence at the time of occurrence to the notice of learned trial Court but on the contrary plea of enmity and innocence was raised which could not be substantiated as no defence evidence whatsoever was led. We are conscious of the fact that no adverse inference could be drawn on the basis of refusal of an accused to get his statement recorded on oath but we cannot help expressing that he could have explained his absence while recording his statement on oath. In the light of abovementioned discussion it can be inferred safely that in spite of various opportunities the plea of alibi was never taken. Let we mention here at this juncture that charge was framed on 12-10-1991 and reply of Muhammad Aslam was as follows:-- ' "Question.--Have you heard and understood the charge framed against you?
' Answer.--Yes.
' Question.--Do you plead guilty to the charge?
' Answer. --No, ' Question.--Have you got anything else to say in your defence?
' Answer.--I am innocent."
12. A bare perusal of his reply to the charge would indicate that nothing was said about his confinement in District Jail, Gujrat. It is not understandable that how this plea which was available to the accused from the very beginning has been taken at the time of filing this review petition and in our view the simple answer could be that this is a false plea which was discarded by the learned trial Court and subsequently it was never pressed into service either before the High Court or this Court. In such view of the matter we are not inclined to accept the said plea agitated at belated stage that too without any substance.
' The upshot of the above discussion is that this review petition being devoid of merit is dismissed.